Reply  of  3lr,liops 
Meade,  M^Ilv8.ine  and 
Burgess  to  the  ar^-rument 
presented  by  the  committee 
of  the  convention  of  the 
diocese  of  Nex-r  Jersey,  to 
the  Court  of  Bishops,  in 
session  at  Burlington  for 
the  trial  of  Bishop  Doane. 


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REPLY 


BISHOPS   MEADE,  M'lLYAINE,  AND  BURGESS 


ARGUMENT  PRESENTED  BY  THE  COMMITTEE  OF  THE 

CONVENTION  OF  THE  DIOCESE  OF 

NEW  JERSEY, 


THE    COUET    OF    BISHOPS, 


IN  SESSION  AT  BURLINGTON 


TRIAL  OF  BISHOP  DOANE 


PHILADELPHIA: 
PRIXTED   BY  T.  K.  AND  P.  G.  COLLIXS. 

1852. 


REPLY. 


TO  THE  RIGHT  REVEREND 

THE  BISHOPS  CONSTITUTING  THE  PRESENT  COURT: 

Brethren  :  The  undersigned  who  have  appeared  before  you  in 
the  most  painful  and  responsible  position  of  Presenters  of  our  brother, 
the  Bishop  of  New  Jersey,  for  a  trial  before  you,  feeling  ourselves 
called  on  by  all  the  imperative  considerations  of  solemn  duty  to  God 
and  His  church  which  moved  us  to  that  act,  to  place  on  your  record 
a  reply  to  the  argument  which  you  have  permitted  a  Committee  of  the 
Diocese  of  New  Jersey  to  present,  would  now  respectfully  solicit  your 
attention  thereto. 

But  first  allow  us  to  say,  that  we  deeply  realize  the  very  painful 
relation  to  this  court  in  which  our  presentment  has  placed,  of  neces- 
sity, our  brother,  the  respondent  in  this  case ;  and  we  feel  the  duty, 
and  will  endeavor  most  truly  to  fulfil  it,  of  treating  the  subject  in 
hand  in  as  much  abstraction  from  him  personally,  and  his  feelings, 
as  its  just  argument  will  permit.  We  think  we  know  enough  of  our 
own  hearts  to  be  enabled  confidently  to  say  that  we  entertain  no 
other  than  the  kindest  feelings  towards  him ;  that,  beyond  our  official 
duty  as  Bishops  and  Presenters,  we  have  no  interests  enlisted  in  the 
further  prosecution  of  this  issue;  that  to  see  him  cleared  by  a  fiiithful 
sifting  of  evidence,  according  to  the  mode  prescribed  by  the  church, 
from  the  charges  we  have  felt  constrained  to  bring,  so  that  he  and 
the  honor  of  the  church  may  be  vindicated  in  the  eyes  of  all  well 
judging  men,  would  be  to  us  the  same  matter  of  joy  and  thankful- 
ness that  it  would  be  to  all  of  you ;  and  consequently  that  if,  in  the 
course  of  our  present  argument,  we  should  seem  to  be  led  to  the  ex- 
pression of  thoughts,  or  the  use  of  words  more  painful  to  the  feelings 
.  of  the  respondent  than  the  merits  of  the  subject  demand  or  the  law 


of  kindness  should  allow,  it  is  our  mistake,  not  our  design ;  it  is 
against,  not  in  accordance  with  our  aim  and  effort. 

With  these  preliminary  remarks,  we  beg  to  place  before  the  court 
some  considerations  exhibiting  the  exceeding  seriousness,  the  grave 
responsibility,  the  critical  importance  of  the  duty  to  which  you  are 
now  called  in  deciding  upon  the  question  before  you. 

When  the  request  was  made  to  you  that  the  Committee  represent- 
ing the  Convention  of  the  Diocese  of  New  Jersey  might  be  permitted 
to  appear  at  your  bar,  and  present  a  written  argument,  having  for  its 
declared  object  the  persuading  of  the  judges  in  this  case  to  adopt  a 
certain  interpretation  of  the  law  under  which  alone  they  sit,  in  order 
that  they  might  be  induced  to  dismiss,  without  trial,  the  charges  we 
have  brought  at  so  great  a  sacrifice  of  personal  feeling,  and  under  so 
solemn  a  sense  of  duty  to  the  church,  we  felt  ourselves  called  on  to 
resist  such  request  by  all  the  means  canonically  within  our  reach. 
We  urged  that  to  admit  them  and  their  argument  was  against  the 
provisions  of  the  law  under  which  this  court  is  constituted,  and  by 
which  it  must  proceed;  that  no  parties  are  known  to  that  law,  and, 
consequently,  none  can  lawfully  appear  at  this  bar  but  the  judges, 
the  presenters,  and  the  respondent;  that  the  admission  of  any  other 
to  influence,  in  any  way,  your  decisions,  would  be  as  inconsistent 
with  the  rules  and  usages  of  courts  of  analogous  jurisdiction,  and 
with  the  fundamental  principles  of  jurisprudence,  as  with  the  terms 
and  provisions  of  our  Canon  Law ;  and  would,  therefore,  institute  a 
precedent  of  the  most  dangerous  character  to  the  future  discipline  of 
the  church. 

But  our  objections  were  overruled.  We  submitted  respectfully  to 
the  authority  of  the  court.  The  Committee  was  admitted.  They 
presented  and  read  a  document,  previously  printed.  It  is  material, 
at  this  stage  of  our  remarks,  that  the  court  should  bear  in  mind  that 
a  part  of  the  argument  of  the  Committee  I'ests  upon  the  fact  of  a 
new  presentment  having  been  made  after  the  Convention  of  New 
Jersey,  by  its  representatives,  had  investigated  the  charges  con- 
tained in  a  former  presentment;  that  the  determining  considera- 
tion which  led  us  to  make  that  new  presentment  was  the  doubt, 
to  say  the  least,  resting  upon  the  legality  of  the  act  of  our  late 
venerable  Presiding  Bishop,  postponing  the  trial  of  the  former 
from  the  time  first  appointed  to  a  later  day,  and  thus  making  doubt- 
ful the  legality  of  a  court  assembled  on  that  day.     The  Committee 


place  much  of  tbcir  objection  upon  tlie  ground  tliat  this  presentment 
is  a  new  one.  Tlie  court  will  please  also  to  bear  in  mind  that  not 
only  was  the  postponement  of  the  former  presentment  so  entirely 
against  our  wishes  and  convictions  as  presenters,  that  we  have  never 
ceased  to  complain  of  it ;  not  only  was  it  so  contrary  to  the  con- 
venience and  arrangements  of  the  Bishops,  that  several  who  could 
and  would  have  attended  the  trial,  at  the  first  appointed  time,  are 
not  and  cannot  be  in  attendance  now ;  but,  although  it  was  stated  by 
the  late  Presiding  Bishop,  in  his  notice  of  the  postponement,  that 
several  Bishops  were  represented  to  him  as  desiring  the  postpone- 
ment, we  are,  nevertheless,  assured  in  writing,  under  the  hand  of 
the  late  lamented  Bishop  of  Rhode  Island,  that  when  it  was  pro- 
posed that  the  Bishops  (of  whom  he  was  one)  assembled  in  New 
York,  to  send  delegates  to  England,  "  should  unite  in  a  request  to 
the  Senior  Bishop  to  postpone  the  trial,"  in  order  that  Bishops 
might  go  and  yet  attend  it,  "  an  examination  of  the  Canon  satisfied 
many  of  them  that  in  so  doing  he  would  transcend  Ms  powers,"  and 
that  "  accordingly  the  delegates  elect  announced  their  purpose  not  to 
leave  the  country  under  such  circumstances."  "  If,  however,"  said 
Bishop  Henshaw,  ''  Bishop  Doane  assented  to  the  postponement 
under  the  peculiar  circumstances,  I  cannot  believe  that  he  would 
object  to  the  trial's  proceeding  on  the  ground  of  this  technical  difii- 
culty." 

The  Presenters  have  felt  themselves  bound  to  call  the  attention  of 
the  court  to  these  particulars,  lest  they  should  be  held  under  a  re- 
sponsibility for  the  new  presentment  beyond  what  they  are  willing  to 
acknowledge. 

It  is  said  by  the  Committee  of  the  Convention  of  New  Jersey,  re- 
specting the  new  charges  contained  in  this  presentment,  that  "they 
were  known  to  have  been  alleged  hefore  by  those  by  whom  they  are 
preferred." 

It  is  not  only  true  that  the  Presenters  had  heard  of  the  alleged 
offences  during  the  preparation  of  the  first  presentment,  but  that  they 
had  actually  determined  on  introducing  two  of  them;  those  touching 
pecuniary  delinquency.  The  omission  of  these  was  accidental.  The 
others  were  also  under  consideration,  but  were  omitted  for  want  of 
time  to  make  sufficient  inquiry,  and  be  assured  of  proper  witnesses. 
This  deficiency  being  supplied  before  the  second  presentment  was 
adopted,  the  last  charges  were  inserted,  and  the  presentment,  thus 


completed,  was  sent,  with  all  possible  expedition,  to  the  Presiding 
Bishop.  Unexpected  delays  in  preparing  the  necessary  copies  to  be 
sent  to  the  other  Bishops,  and  in  the  mail  itself,  were  the  only  causes 
known  to  us  through  which  it  failed  to  reach  its  final  destination 
until  the  evening  on  which  it  was  served  upon  the  respondent. 

The  step  which  you  are  now  called  to  adopt,  if  you  listen  to  the 
prayers  of  the  Committee  of  the  Convention  of  New  Jersey,  is  one 
which,  in  our  humble  view,  should  not  be  taken  till  after  the  most 
solemn  consideration  of  what  is  justly  expected  of  this  court  under 
the  vows  of  your  consecration  as  Bishops,  for  the  sustaining  the  disci- 
pline, the  vindication  of  the  purity,  and,  consequently,  the  protection 
of  the  light  of  this  church,  as  a  city  set  on  a  hill  in  the  midst  of  a 
gainsaying  world;  nor  then,  without  the  most  imperative  and  certain 
convictions  of  positive  obligation.  The  question  is,  whether,  after 
you  have  assembled  here  from  various  and  distant  parts,  on  a 
canonical  call,  to  try  a  presentment  made  undeniably  in  strict 
accordance  with  the  letter  of  the  law,  and  involving  charges  so 
numerous,  and  so  heavy,  against  one  of  your  own  order,  on  whose 
vindication  his  own  usefulness  and  the  church's  honor  so  much 
depend;  you  will,  on  the  plea  of  a  party,  unknown  to  the  law  under 
which  you  sit,  decline  all  investigation  of  those  charges;  suiFer  them 
to  stand  in  all  their  naked  awfulness  untried,  and,  thus  unalleviated, 
going  out  to  all  the  world  against  a  brother  Bishop,  with  their  per- 
petual testimony;  going  down  to  all  generations,  a  blot  so  dark,  not 
only  upon  the  reputation  of  a  single  Bishop,  but  upon  the  good  name 
of  our  whole  ministry  and  our  whole  church. 

Let  it  not  be  answered  that  these  charges  have  been  tried  by  a 
Committee  of  the  Convention  of  the  Diocese  of  New  Jersey.  Inves- 
tigated, to  a  certain  extent,  and  in  a  certain  way,  we  grant  they  have 
been;  but  tried  they  have  not  been.  Does  this  church  acknowledge 
anything  as  the  trial  of  a  Bishop,  except  it  be  before  one  single 
tribunal,  and  that  the  very  one  now  assembled  ?  Does  this  church 
acknowledge  anything  as  a  trial  of  a  Bishop,  except  under  the  single 
law  by  which  this  court  is  constituted,  and  according  to  its  mode  of 
investigation  ?  Is  it  competent  to  any  Diocese  to  set  up  its  own 
tribunal  for  the  examination  of  charges  against  a  Bishop,  and  then 
claim  that  its  examination  shall  have  the  weight,  and  place,  and  force 
of  a  trial  by  the  only  court  known  to  the  church  for  such  an  oflBce; 


as  if  the  one  could  possibly  stand  as  a  satisfactory  substitute  for  the 
other?  Can  an  investigation  pretend  to  approximate  to  the  dignity 
and  sufficiency,  though  confessedly  without  the  form  of  such  a  trial 
as  your  Canon  demands;  which,  by  its  own  professions,  was  entirely 
ex  parte;  at  which  not  only  could  there  be  no  cross-examination  of 
witnesses — at  which  not  only  did  almost  every  witness,  relied  on  by 
the  Presenters,  refuse  to  attend,  because  they  knew  it  was  not  the 
tribunal  required  by  the  church — but  at  which,  by  positive  resolution 
of  the  Convention  of  New  Jersey,  the  motion  to  notify  the  presenting 
Bishops,  and  allow  them  to  attend  the  investigation  by  their  at- 
torney to  cross-examine  witnesses,  and  produce  rebutting  testimony, 
was  rejected?*  Are  the  ends  of  a  regularly  constituted  judicial  tri- 
bunal, under  the  law  of  our  whole  church,  and  alone  depended  on 
by  our  whole  church,  to  be  thus  satisfactorily  attained  ?  Should  a 
Christian  Bishop,  lying  under  the  weight  of  such  charges  as  those 
before  you,  and  yet  conscious  of  innocence,  desire  them  to  be  allowed 
to  remain  so  untried,  a  desire  which  we  understand  the  present  re- 
spondent pointedly  to  disclaim,  we  should  exceedingly  wonder. 
How  any  Christian  Bishop,  conscious  of  innocence,  could  help  de- 
mandiog,  in  justice  to  himself,  that  every  impediment  to  his  trial, 
not  absolutely  insurmountable,  should  be  overleaped,  in  order  that 
he  might  have  the  privilege  of  being  confronted,  face  to  face,  with 
the  testimony  against  him,  we  do  not  understand.  That  the  Con- 
vention of  a  Bishop  so  presented,  on  such  charges,  and  one  professing 
the  greatest  affection  for  their  Bishop,  the  greatest  zeal  for  his 
reputation,  and  happiness,  and  usefulness,  and,  above  all,  the  most 
entire  confidence  in  his  innocence,  in  the  impossibility  of  the  charges 
being  sustained  by  evidence,  should  be  so  earnest  to  set  aside  this 
canonical  trial,  so  looked  to  and  waited  for  by  the  whole  church,  and 
to  set  it  aside  mainly  on  the  ground  of  certain  views  entertained  by 
them,  and  perhaps  nowhere  else,  concerning  their  position  and  rights; 
yea,  that  they  should  say  in  so  many  words,  "  TFe  cannot  consent  to 
his  trial,  because  ice  are  satisfied  of  his  innocence,"  is,  we  confess, 
to  us  a  matter  of  the  deepest  astonishment.  We  should  have  sup- 
posed that  it  would  have  been  a  far  more  friendly  expression  towards 
their  Bishop  to  have  said,  "  We  cannot  consent  to  his  trial  NOT  taking 
2)lace,  because  we  are  satisfied  ofi his  innocence." 

*  See  Journal  of  the  Sixty-ninth  Annual  Convention  of  New  Jersey,  p.  22. 


8 

But  we  would  respectfully  submit  that  the  Diocese  is  not  the  only 
nor  the  most  important  ecclesiastical  body  that  has  a  deep  interest, 
and  that  expects  its  interests  to  be  considered,  in  the  decision  now 
before  you.  There  is  a  body  of  clergy  and  a  body  of  laity  consti- 
tuting the  Protestant  Episcopal  Church  in  the  whole  land,  the  church 
under  whose  authority  and  law  you  are  here  sitting,  that  is  now  com- 
passing you  about  as  a  great  cloud  of  witnesses,  and  looking  most 
earnestly  upon  your  every  act  and  movement,  realizing  how  critically 
the  dignity  of  its  laws,  the  character  of  its  discipline,  the  purity  of 
its  morals,  the  reputation  of  its  ministry,  the  honor  of  the  gospel  are 
now  dependent  not  only  on  your  decision  of  the  present  question, 
but,  if  it  be  not  carried  on,  your  further  doings  at  every  step  of  the 
progress  of  this  case. 

As  for  ourselves — the  Presenters — we  have  no  personal  interests 
at  stake  which  your  determination,  in  deference  to  the  claim  and 
urgency  of  the  Committee  of  the  Convention  of  New  Jersey,  not  to 
try  this  present  issue,  would  not  most  amply  sustain.  If  the  case  is 
so  clear,  and  the  charges  so  incapable  of  proof  as  that  Committee 
declares,  then,  so  far  as  we  are  personally  concerned,  under  the  heavy 
responsibility  we  have  assumed,  it  is  far  better  for  us  that  you  grant 
their  request.  For  we  venture  to  assure  you  that,  in  that  case,  we 
should  feel  perfectly  confident  that,  in  the  eyes  of  the  church  in 
general,  and  of  all  people,  the  bare  desire  of  the  Committee,  so 
urgently  pressed  on  such  grounds,  would  be  our  vindication  and 
praise. 

But  we  appear  not  here  for  ourselves.  We  represent — as  you  also 
represent,  right  reverend  brethren — all  that  great  cloud  of  witnesses, 
the  whole  church,  which  is  now  solemnly  waiting  upon  your  delibera- 
tions. That  is  the  great  party  in  this  case  which  remains  to  be 
heard.  If,  under  the  present  motion,  the  ti-ial  of  the  respondent  be 
dismissed,  our  trial  before  that  tribunal  is  ended.  We  are  perfectly 
confident  in  its  verdict  to  our  clearance.  But  allow  us,  right  reverend 
brethren,  most  respectfully  to  remind  you  that  then  your  trial  at  that 
great  tribunal  begins.  The  church  must  be  satisfied.  Whether  you 
will  have  fulfilled  your  consecration  vows,  "  to  diligently  exercise 
such  discipline  as,  by  the  authority  of  God's  word  and  the  order  of 
the  church,  is  committed  to  you,"  will  then  be  tried.  That  you  will 
well  and  conscientiously  consider  the   position   in  which  you  arc, 


9 

therefore,  now  placed,  and  the  critical  pass  to  which  jou  have  now 
arrived,  we  freely  trust. 

We  proceed  to  show  that  the  Committee  of  the  Convention  of  New 
Jersey  have  presented  no  reason  which  can  shield  this  court  from 
the  strong  dissatisfaction  which  the  refusal  to  proceed  with  the  trial 
now  pending  must  occasion. 

The  Presenting  Bishops  cannot  adequately  express  the  surprise  and 
mortification  with  which  they  beheld  the  peaceful  and  orderly  con- 
duct of  a  judicial  tribunal,  in  a  solemn  investigation,  invaded  and 
interrupted  by  the  presentation  of  the  strange  and  unusual  remon- 
strance and  appeal  of  the  Committee  of  the  Convention  of  New 
Jersey. 

Against  the  introduction  of  this  influence,  we  have  hitherto  op- 
posed our  sternest  remonstrances. 

They  have  proved  unavailing;  and  now  we  are  compelled  to  meet 
and  expose  the  perversions  of  fact  and  the  distortions  of  law,  behind 
and  beneath  which  that  Committee  have  assailed  the  freedom  and  in- 
dependence of  your  judicial  character. 

However  much  we  deplore  the  ill  example  of  the  precedent,  we  are 
far  from  regretting  the  opportunity  it  affords  us  to  present  to  this  court 
a  full  narrative  of  the  efforts  to  procure  and  to  evade  a  judicial  in- 
vestigation of  the  crimes  laid  to  the  charge  of  the  respondent. 

The  legal  result  contemplated  by  the  remonstrance  of  the  Conven- 
tion is  a  discontinuance  of  all  further  proceedings  on  this  present- 
ment. They  ask  that  the  court  refuse  to  try  those  specifications  of 
the  presentment  which  have  been  investigated  by  the  Convention, 
because  the  presentment  now  pending  was  fouud  onlj*  after  the  Con- 
vention had  acted  upon  them. 

They  propose  a  like  dismission  of  the  charges  not  investigated  by 
the  Convention,  on  the  faith  of  its  pledge  to  investigate  them  here- 
after. 

The  presenting  Bishops  presume  that  this  future  investigation  will 
be  a  repetition  of  the  past;  and  that  past  investigation  has  not  so  con- 
ciliated their  confidence  or  respect  as  to  induce  them  willingly  to 
commit  the  purity  of  the  Episcopate  to  such  an  ordeal  under  such 
auspices. 

They  invoke  the  solemn  attention  of  the  court,  while  they  retrace 
the  course  of  events  touching  the  attempts  to  procure  a  trial  of  the 
charges  against  the  accused,  which  the  Committee  have  undertaken 


10 

to  narrate,  but  which  they  have  very  imperfectly  and  inaccurately 
represented. 

At  the  Convention  of  1849,  a  resolution  was  offered  reciting  the 
requisition  of  the  Scriptures  that  a  Bishop  should  be  of  good  rejwrt 
of  them  that  are  without;  and  reciting,  also,  that  public  rumor,  as 
well  as  newspaper  publications,  had  made  serious  charges  against  the 
Bishop,  and  creating  a  committee  to  make  such  investigations  as 
should  establish  the  innocence  or  justify  the  presentment  of  the  ac- 
cused. That  resolution  was — after  full  debate  and  discussion — lost 
by  a  unanimous  negative. 

The  fact  of  the  newspaper  publications,  and  of  the  prevalence  of 
the  public  rumors  alleged,  was  notorious.  They  were  not  denied 
or  disputed;  but,  admitting  their  existence,  the  Convention  refused 
to  institute  an  inquiry  as  to  their  truth  or  falsehood. 

The  Committee  have  informed  us  as  to  the  reasons  of  this  refusal; 
and  they  throw  some  light  on  the  chances  of  holding  the  Bishop  of 
New  Jersey  to  a  due  responsibility  through  his  Convention. 

We  are  told  that  "they  refused  to  treat  the  fame  of  the  Bishop 
and  peace  of  the  Diocese  as  matters  of  such  light  moment,  as  to  place 
them  at  the  mercy  of  every  idle  report  of  ignorance  or  enmity. " 

But  the  Convention  did  not  even  take  the  trouble  to  inquire  whe- 
ther these  public  rumors  ivere  idle  reports  of  ignorance  or  enmity,  or 
the  reverberating  echoes  of  the  voice  of  truth. 

Whether  true  or  false,  malignant  or  urged  in  good  faith,  they 
made  the  Bishop  of  evil  report  among  them  that  were  without  The 
Bible  required  him  to  be  not  merely  blameless  in  fact,  but  to  be  of 
good  report.  The  evil  report  was,  therefore,  the  very  thing  to  be 
avoided,  cleared  up,  and  dispelled;  yet  tliat  task  the  Convention  re- 
fused to  attempt,  contenting  itself  with  its  own  preconceived  confi- 
dence in  his  purity. 

The  Convention  was  as  unmindful  of  the  canons  of  the  church 
as  of  the  precepts  of  the  New  Testament,  when  they  refused  to  regard 
prevailing  reports  and  imputations  on  the  character  of  the  Bishop  as 
adequate  reasons — not  for  trying  the  Bishop — but  for  inquiring  into 
their  origin  so  as  to  dispel  or  confirm  them.  The  XXXVII.  Canon 
of  1838  makes  it  the  duty  of  the  Bishop,  if  a  minister  ''ie  accused 
by  public  rumor  of  crimes  and  offences,"  "to  see  that  inquirij  be  in- 
stituted as  to  the  truth  of  such  public  rumor."  The  analogy  should 
compel  a  Convention,  whose  Bishop  is  "accused  by  public  rumor,"  to 


11 

"inquire  as  to  the  trutli  of  such  public  rumor."  The  character  of  a 
Bishop  is  quite  as  delicate,  much  more  important,  not  less  likely  to 
be  assailed,  and  more  powerful  in  example  for  evil  or  for  good.  It 
should,  therefore,  be  guarded  with  even  greater  care  than  that  of  the 
presbyter.  But  to  refuse  inquiry  is  not  to  protect,  but  to  expose  it 
to  the  tongue  of  calumn3^ 

Nor  is  it  true  that  the  Convention  of  1849  gave  any  assurance 
that  a  suitable  investigation  would  follow  upon  the  presentation  of 
charges  by  responsible  names;  for  the  declarations  in  debate  of  a  few 
of  its  prominent  members  bound  nobody  but  themselves. 

The  Convention,  therefore,  left  on  the  character  of  the  Bishop 
clouds,  which,  while  most  seriously  darkening  his  good  name,  have 
cast  their  shadow  over  the  whole  church. 

The  statement  of  the  Committee  that,  "  two  succeeding  Annual 
Conventions  were  held  without  a  renewal  of  the  subject" — if  true  in 
the  letter,  is  not  accurate  in  spirit  and  substance. 

At  the  following  Convention  of  1850,  an  effort  on  the  part  of  some 
members  of  the  Convention  to  obtain  satisfaction  as  to  the  security 
of  the  Episcopal  fund  then  in  the  hands  of  the  Bishop,  and  under  the 
circumstances  detailed  in  the  Tenth  Specification,  was  frustrated  b}' 
the  abrupt  adjournment  of  the  Convention. 

The  purpose  of  the  adjournment  may  be  conjectured,  with  no  little 
certainty,  from  a  similar  transaction  of  the  following  year. 

Before  the  meeting  of  the  Convention  of  1851,  Michael  Hayes,  one 
of  the  chief  creditors  of  the  Bishop,  and  one  who  had  been  specially 
injured  by  him,  had  publicly  declared  his  intention  to  complain  in  a 
definite  shape  to  that  Convention.  It  was  widely  known  that  he  had 
prepared  a  formal  affidavit  for  the  purpose ;  and  the  Bishop  had  been 
apprised  by  him  of  his  intention.  The  friends  of  the  Bishop  in  the 
Convention  knew  that  Mr.  Ilalsted  stood  prepared  to  bring  the  mat- 
ter to  the  attention  of  that  body.  The  Convention,  under  these  cir- 
cumstances, met  in  May,  1851;  and,  on  the  first  day  of  its  session, 
contrary  to  its  usage,  and  after  Mr.  Ilalsted  was  known  to  have  re- 
tired for  the  day,  hurried  over  its  indispensable  business ;  pushed  its 
work  so  far  into  the  evening  as  to  crowd  out  the  religious  services 
appointed  for  that  season ;  omitted  the  examination  of  the  treasurer's 
accounts,  which  could  not  be  passed  on  the  fii-st  day  of  the  Conven- 
tion, and  abruptly  adjourned  shie  die,  late  in  the  evening.     So  anx- 


12 

ions  were  tiaey  to  avoid  meeting  the  charges  of  Michael  Hayes,  now 
among  the  most  serious  that  are  urged  against  the  Bishop. 

Such  were  the  circumstances  under  which  the  "  two  succeeding 
Conventions  were  held  without  a  renewal  of  the  subject." 

Nor  was  Michael  Hayes  the  only  accuser  of  the  Bishop,  of  a  re- 
sponsible character,  prior  to  that  Convention. 

In  September,  1850,  the  rector  of  St.  Michael's  Church,  Trenton, 
read  to  the  vestry  and  wardens  of  his  church,  a  statement  embodying 
the  facts  which  now  form  the  Eleventh,  Eighteenth,  and  Nineteenth 
Specifications  of  the  presentment ;  and  the  wardens  and  vestry  caused 
it  to  be  printed  and  published,  and  circulated  through  the  Diocese, 
i;nder  their  avowed  sanction.  The  Bishop  and  the  members  of  the 
Convention  cannot  plead  ignorance,  v:lio  were  the  rector,  or  wardens, 
and  vestrymen  of  one  of  the  most  important  parishes  in  the  Diocese. 
It  is  not  supposed  that  all  of  them — it  is  not  known  that  any  of 
them — were  of  such  little  repute  and  character,  that  charges  dis- 
tinctly urged  in  print  by  them  against  their  Bishop  were  unworthy 
of  notice  or  investigation.  Tliey  were  neither  idle  rumors  nor  neics- 
pnjier  ]inhlicatio7is.  Responsible  names  were  answerable  for  the 
truth  of  the  charges;  yet  the  Convention  dissolved  under  the  appre- 
hension of  an  investigation  which  they  were  anxious  to  avoid,  yet 
feared,  if  asked,  to  refuse. 

In  despair  of  redress  from  such  a  Convention,  four  laymen  of  re- 
spectable standing,  all  communicants  of  the  church,  all  members  of 
Convention,  and  all  officers  of  parishes,  sought  redress  in  the  other 
method  pointed  out  by  the  Canon. 

They  laid  nineteen  charges,  drawn  up  in  due  form,  and  accompa- 
nied by  the  affidavit  of  Michael  Hayes,  as  to  some  of  the  most  mate- 
rial, before  the  three  Presenting  Bishops,  and  desired  their  official 
intervention  as  presenters  to  procure  a  trial  of  the  accused. 

Other  Bishops  were  solicited  to  assume  the  ungracious  task  of  pre- 
senters; but,  while  admitting  the  duty  of  some  of  the  order  to  make 
the  inquest,  they  all,  for  various  reasons  personal  to  themselves,  de- 
clined to  proceed  in  the  matter. 

Still  reluctant  to  force  on  the  Bishop  of  New  Jersey  the  vexation 
and  scandal  of  a  public  trial,  they  addressed  him  their  letter  of  the 
22d  September,  1851.  The  response  was:  "The  Protest,  Appeal, 
and  Reply  of  George  Washington  Doane,  Bishop  of  New  Jersey." 


13 

TIae  meaning  and  the  object  of  that  letter  have  been  grossly  per- 
verted. 

It  was  intended  as  a  kindness.  It  sought  to  save  the  Bishop  the 
humiliation  of  a  public  trial,  if  the  purity  of  the  church  could  be 
assured  by  a  less  public  process.  The  Bishop  denounced  it  as  an 
uncanonical,  unchristian,  and  inhuman  procedure;  repelled  its  sug- 
gestions with  scorn;  heaped  contumely  on  its  authors,  and  summoned 
them  before  "  the  judgment-seat  of  God"  to  answer  for  "the  injustice, 
indignity,  and  cruelty"  of  thoir  conduct. 

He  summoned  the  special  Convention  of  March,  1852. 

It  is  true  that  this  Convention  was  confined  to  the  subject  men- 
tioned in  the  call;  but  the  Committee  are  seriously  misleading  this 
court  when  they  insinuate  that  any  investigation  of  the  charges 
against  the  Bishop  was  beyond  the  terms  of  the  call. 

The  language  of  the  call  is  decisive. 

The  Convention  were  summoned  "  to  consider  and  express  their 
juchjment  on  the  official  conduct  of  the  Bishops  of  Virginia,  Maine, 
and  Ohio,  as  touching  the  rights  of  the  Bishop  and  the  Diocese;  in 
dictating  a  course  to  he  pursued  hy  them,  in  their  letter  addressed  to 
him  dated  22d  September,  1851,"  &c. 

The  letter,  and  the  articles  of  charge  which  the  three  Bishops  re- 
quested should  be  investigated  before  a  Special  Convention,  are  set 
forth  in  the  Protest  and  Appeal ;  and  to  it  is  reference  made  for  the 
documents  which  were  to  form  the  subject  of  consideration.  The 
letter  contained  the  charges,  and,  without  them,  was  unmeaning. 

The  Convention,  therefore,  was,  by  the  words  of  the  call,  commis- 
sioned to  consider  and  express  their  judgment  on  the  rights  of  the 
Bishop  and  of  the  Diocese. 

Now,  those  rights,  as  to  the  Diocese,  are  asserted  to  include  the 
exclusive  right  of  priority  in  deciding,  through  the  Convention,  ou; 
the  presentment  of  their  Bishop.  That  is  the  very  point  of  the  pre- 
sent application.  They  were,  therefore,  called  to  consider  of  the 
course  to  be  pursued  by  them  in  consequence  of  the  dictation  and  the 
threat  of  the  three  Bishops. 

Neither  they  nor  the  Bishop  seem  to  have  entertained  any  doubt 
as  to  the  extent  of  their  jurisdiction  at  that  Convention.  The  limit- 
ation of  it  has  the  appearance  of  an  afterthought. 

'  The  Bishop,  in  his  address,  declares  that  the  action  of  the  Conven- 
tion of  Vi-i'd  ^^  is  insisted  on  as  final."    "The  action  ^  as  taken  place 


14 

in  your  Diocesan  Convention.  The  Bishops  cannot  take  it  up." 
But  while  excluding  the  Bishops,  he  admits  the  power  of  the  Con- 
vention. He  says  :  that  he  did  not  wivite  investigation;  but  "  his 
answer  was,  to  whomsoever  will,  if  you  desire  investigation,  come 
and  make  it.  Made  in  a  canonical  way,  &c.  &c. ;  he  meets  it  in  a 
moment." 

The  Convention  seem  quite  clear  as  to  (heir  power. 

The  resolutions  were  proposed  and  adopted,  embodying  the  deci- 
sion of  the  Convention  on  the  very  point. 

The  first  sustains  the  Bishop's  refusal  to  call  a  Convention  for  the 
special  purpose  of  investigation,  at  the  dictation  of  the  Bishojjs. 

The  second  resolution  goes  entirely  beyond  what  the  Committee 
would  represent  as  the  limits  of  the  power  of  the  Convention. 

It  declares  that,  m  vieiv  of  the  vote  of  the  Convention  of  1849, 
and  "of  all  that  has  since  occurred  in  reference  to  the  alleged  charges 
against  our  Bisliop,"  they  have  entire  confidence  in  his  purity  and 
uprightness. 

What  is  this  but  a  passing  on  the  very  matter  to  be  investigated? 
It  is  declaring  the  residt  of  an  actual  investigation :  for  it  is  done  in 
view  of  the  vote  of  1849,  and  all  that  has  since  transpired  relative  to 
the  charges. 

The  third  resolution  goes  still  further,  and  declares  that  no  investi- 
gation is  required.  It  was  equally  competent  for  the  Convention  to 
have  come  to  an  opposite  conclusion. 

If  it  could  vote  that  the  Bishop  was  pure,  it  could  say  that  he  was 
impure. 

If  it  could  say,  that  no  investigation  was  needed,  it  could  say,  "we 
think  that  such  and  such  charges  do  need  investigation." 

Nor  can  they  escape  under  the  plea  of  the  want  of  a  responsible 
name:  for  the  four  laymen  stood  responsible  for  the  nineteen  charges; 
and  the  Bishop  stood  behind  them ;  and  the  affidavit  of  Michael  Hayes 
gave  the  sanction  of  oath. 

The  Convention,  then,  refused  again  to  hold  the  Bishop  responsi- 
ble before  the  church. 

The  Committee  are  singularly  unfortunate  in  their  complaint  that 
the  Presenting  Bishops,  between  the  Special  and  the  Annual  Con- 
vention of  1852,  disregarded  the  pledge  of  the  Special  Convention 
that  an  investigation  should  be  had,  and  that,  before  the  time  for  the 


15 

assembling  of  the  Annual  Convention,  action  was  taken  by  them  to 
procure  a  trial. 

The  Committee  inaccurately  represent  the  proceedings  of  the  Spe- 
cial Convention. 

It  gave  no  pledge  that  it,  or  any»other  Convention,  would  investi- 
gate the  charges  preferred  against  the  Bishop  by  the  four  laymen. 

On  the  contrary,  the  resolutions  adopted  by  that  Convention — the 
only  authentic  evidence  of  its  views — expressly  declare  its  solemn 
opinion  that  the  best  interest  of  the  diocese  and  of  the  church  at 
large  requires  no  such  proceedimj . 

That  was  a  pledge  not  to  investigate  any  of  those  charges. 

The  resolutions  do  declare  that  the  Convention  of  the  Diocese  had 
ever  been  ready  to  make  such  investigation  on  charges  duly  made ; 
but  its  readiness  is  best  estimated  by  its  acts;  and  they  have  been  a 
continued  series  of  refusals  or  evasions. 

The  three  Bishops  had  thus  urged  a  call  of  a  Convention  to 
investigate  specific  charges.  The  Convention  formally  replied,  that 
the  interests  of  the  church  require  no  such  proceeding.  This  was  a 
declaration  that  it  would  not  investigate. 

The  three  Presenting  Bishops  awaited  the  result  of  the  Special 
Convention. 

They  were  mortified  at  the  exhibition  of  devotion  to  an  individual 
at  the  cost  of  the  reputation  of  the  church  of  God. 

They  had  but  one  path ;  and  they  resolved  to  tread  it — thorny 
though  it  might  prove. 

They  entered  on  a  formal  and  careful  investigation  of  the  charges 
preferred  against  the  accused.  The  evidence  before  them  satisfied 
them  of  his  guilt  on  all  the  specifications  in  the  presentment  first 
made;  and  they  said  so — as  the  law  required  them  to  do — in  the 
shape  of  that  presentment. 

It  was  forwarded  to  the  senior  Bishop ;  and  he  designated  the  24th 
day  of  June  as  the  day  of  trial,  and  summoned  the  court  to  meet. 

It  was  now  irrevocably  fixed  that  an  investigation  would  be  made^ 
and  a  trial  had  before  an  impartial  tribunal — unless  some  mode  could 
be  contrived  to  evade  it. 

The  Diocesan  Convention  was  now  called  on  to  investigate  the  very 
matters  which  a  few  months  before  had  been  treated  as  not  requiring 
investigatioiL 


16 

The  Convention  of  1852  met.  A  Committee  was  created  "  to 
make  a  full  investigation  of  all  the  charges  in  the  presentment." 

It  was  moved  to  include  all  other  charges.  This  was  voted  down. 
The  Committee  proceeded  to  its  work,  and  the  report  is  the  monu- 
ment of  its  industry.  * 

We  enter  rioio  on  no  criticism  of  its  contents.  It  stands  self- 
condemned  by  its  parentage,  its  purpose,  and  its  results. 

The  Convention  reiterated  the  old  pretexts  in  their  resolutions. 

The  recital  affirmed  that  the  Convention  had  always  been  ready  to 
investigate  charges  dull/  made  and  presented;  yet  no  Convention  had 
ever  been  found  which  avowed  its  willingness  to  enter  on  such  an  in- 
vestigation. 

It  declared  that  the  pcrjycr  siyncd  hy  the  three  Bishops  furnished 
the  first  and  only  occasion  for  that  Convention  to  investigate  charges 
against  their  Bishop;  yet  it  requires  a  refined  logic  to  discriminate 
between  the  paper  signed  hy  three  Bishops  and  the  pajier  signed  hy 
four  laymen. 

They  expressly  claim  the  sole  and  exclusive  right  of  first  passing 
on  the  propriety  of  a  presentment  of  their  Bishop.  Thiey,  there- 
fore, have  no  right  to  attribute  any  peculiarity  to  the  paper  signed 
by  the  Bishops,  distinguishing  it  from  that  signed  by  any  other  re- 
sponsible persons. 

They  do  not  admit  it  to  be  a  xdXidi  iwcsentment — for  if  so,  then  the 
case  is  instituted,  and  nothing  but  a  court  can  try  it.  They  act  on 
this  theory,  and  call  it,  not  a  presentment,  but  a  paper  signed  by 
three  Bishops. 

It  is,  therefore,  ihe paper  signed,  on  which  they  proceed;  and  they 
had  a  paper  signed  by  the  four  laymen,  and  indeed  authenticated  by 
the  Bishops  also,  before  the  Special  Convention.  It  was  not,  there- 
fore, the  first  occasion,  on  their  own  principles,  on  which  they  were 
called  on  to  exercise  their  exclusive  right  of  first  investigation. 

They  cannot  maintain  that  the  Convention  is  only  to  act  on  the 
presentment  by  the  Bishops;  for  that  is  not  the  purpose  of  the  pre- 
sentment mentioned  in  the  Canon.  That  presentment  is  to  be — not 
the  basis  of  a  conventional  inquisition — but  the  thing  to  be  tried. 

The  whole  scheme,  therefore,  stands  exposed. 

The  Convention  now  investigates  because  either  investigation  or 
trial  is  inevitable.  The  Convention  embraces  the  former  alternative, 
and  tries  the  last  effort  at  escape  from  the  dangers  of  a  trial. 


17 

We  are  pointed  "  proudly,"  to  the  list  of  that  Committee  conduct- 
ing the  investigation. 

We  do  not  desire  to  diminish  aught  of  that  pride;  but  we  shall 
not  scruple  to  scrutinize  the  composition  of  that  Committee,  and  its 
fitness  for  the  duties  with  which  it  was  charged. 

We  trust  it  will  not  be  considered  as  impertinent,  if  we  remark  that, 
of  the  seven  members  of  that  Committee,  the  chairman,  Mr.  Ryall, 
was  a  zealous  supporter  of  the  accused  in  the  Convention.  He  was 
chairman  of  the  Committee,  appointed  by  Bishop  Doane,  to  examine 
]VIr.  Germain's  accounts,  and  was  cognizant  of,  and  did  not  disclose 
Mr.  Grermain's  illegal  transfer  of  the  Episcopal  fund  to  Bishop  Doane, 
without  security,  which  was  one  of  the  charges  to  be  investigated  ;  and 
he  was  chairman  of  a  committee  which  reported  contrary  to  the  truth 
that  the  fund  was  secured.  He  was  a  trustee  of  the  college,  where 
his  children  had  been  educated. 

Mr.  Harker  was  a  creditor  of  the  Bishop,  and  so  interested  in  sus- 
taining the  Bishop. 

Mr.  Potter  was  a  judgment  creditor,  and  a  trustee  of  the  college, 
and  so  having  a  like  interest. 

Mr.  Whitney  was  a  trustee  of  the  college,  and  so  having  a  like 
interest. 

The  names  of  the  Committee  had  been  put  on  papers,  and  circu- 
lated exactly  as  they  were  elected,  before  the  assembling  of  the  Con- 
vention. 

Their  investigation  was  wholly  ex  parte,  no  notice  having  been 
given  to  the  Bishops,  who,  it  was  pretended,  had  given  the  only  found- 
ation for  the  investigation :  but  the  Convention  having  actually 
voted  down  a  resolution,  proposing  that  such  notice  should  be  given. 

As  an  attempt  to  discover  the  truth,  it  was  necessarily  a  failure. 

The  material  witnesses  in  support  of  the  charges  were  not  before 
them.  Of  thirty-eight  named  by  Mr.  Halsted,  and  all  material  and 
important,  only  five  were  examined,  as  appears  from  the  report 
itself. 

The  remonstrance  of  the  Committee  describes  the  whole  proceeding 
with  singular  accuracy,  when,  in  deprecating  a  trial,  it  says  :  "  The 
charges  can  only,  at  the  most,  he  hacked  hy  those  who  make  them  under 
oath,  and  the  testimony  on  the  part  of  the  accused  is  already  taken  under 
oath,  disproving,  by  witnesses  as  unimpeachable,  and  by  dates,  and 
2 


18 

facts,  and  circumstantial  evidence  which  never  lies,  the  charges  which 
are  made." 

The  only  diflferenee  is,  the  Committee  heard  one  side;  the  court 
is  asked  to  listen  to  both  mles,  and  u-ei(/h  the  evidence. 

Not  only  were  the  material  witnesses  for  the  prosecution  absent,  but 
there  was  no  cross-examination  of  those  called  on  the  Bishop's  side. 
No  one  was  there  to  cross-examine  them.  They  could  cover  up  the 
facts  in  what  cloud  of  generalities  they  might  see  fit.  Yet,  even  now 
their  evidence  strengthens  greatly  the  case  to  be  made  by  the  prosecu- 
tion. 

No  one  of  the  tests  for  eliciting  truth  was  applied  in  the  proceed- 
ing.    ■ 

As  an  assurance  of  the  truth  of  its  findings,  the  report  is  utterly 
worthless. 

The  resolutions  of  the  Convention,  passed  on  the  reception  of  the 
report,  are  as  worthless  as  the  evidence  and  findings  of  the  report. 
They  can,  at  best,  only  indicate  the  concurrence  of  the  Convention  in 
the  opinion  of  the  Committee  ;  and  the  value  of  that  opinion  we  have 
already  exposed. 

The  third  resolution,  however,  indicates  the  purpose  to  be  served 
by  the  report. 

To  that  resolution  we  owe  this  strange  invasion  of  the  independence 
and  sanctity  of  the  judicial  functions  of  this  court — the  gross  insult 
put  on  your  Episcopal  prerogatives,  and  the  humiliation  of  your 
dignity  to  the  position  of  dependents  on  the  will  or  the  caprice  of  a 
Diocesan  Convention  for  the  liberty  to  exercise  the  prerogative  con- 
ferred by  the  Canon,  of  trying  one  of  your  peers  for  crimes  of  deep 
malignity,  however  supported  by  irresistible  evidence. 

The  third  resolution  directs  the  Committee  to  present  a  written 
representation  of  "the  legal  and  canonical  position  and  right  of  the 
Convention  :  and  to  urge  the  inquiry,  whether  it  will  be  wise,  or  just, 
or  for  the  peace  of  God's  Church,  to  proceed  further  upon  the 
charges  laid  before  the  court." 

This  resolution  presents,  first,  a  claim  of  legal  right ;  and,  secondly, 
an  appeal  to  your  discretion. 

I.  The  latter  rests  for  its  influence  on  the  weight  to  be  attributed 
to  the  body  passing  the  resolutions,  and  making  the  representation. 

The  Committee,  conscious  of  this,  venture  on  a  contrast  between 
the  number  of  the  Convention  and  that  of  the  three  Bishops,  and 


19 

proudly  rest  on  the  elevated  characters  they  ascribe  to  the  Committee 
and  to  the  Convention,  as  the  guarantee  of  the  fulness  and  fairness 
of  the  investigation. 

When  we  turn  to  the  records  of  the  Convention,  we  are  surprised 
to  learn  that,  in  a  Diocese  comprising  sixty-four  ministers,  only  about 
thirti/seven  are  entitled  to  a  voice  in  the  Convention. 

That  of  those  thirty-seven,  only  twenty-two  voted  on  any  resolu- 
tion. 

That  the  resolution  now  under  consideration  was  carried  by  a  vote 
of  seventeen,  less  than  a  majority  of  all  the  clergy  entitled  to  a  vote 
in  Convention. 

That  six  of  those  who  voted  were  missionaries,  appointed  by  the 
Bishop  whose  guilt  or  innocence  was  in  question;  removable  at  his 
pleasure;  depending  on  him  for  their  vote  and  their  daily  bread;  and 
so  subject  to  his  will  that  one  was,  upon  another  occasion,  put  on  the 
list  of  missionaries,  after  he  had  been  excluded  from  his  seat,  which 
he  had  claimed  on  other  ground. 

That  four  other  voters  were  employees  in  the  Bishop's  college  or 
school. 

That  Mr.  Stubbs,  another  voter,  was  deeply  implicated  in  one  of 
the  grossest  charges  against  the  Bishop. 

Consequently,  half  the  clergy  in  Convention  cannot  be  considered 
as  impartial  triers  of  the  matter  to  be  investigated. 

The  vast  majority  of  the  impartial  clergy  are  silent  spectators  cf 
the  scene  in  which  they  shrank  from  being  actors.  Their  opinion  is 
not  before  us. 

Of  the  lay  vote,  we  have  not  the  means  of  so  close  an  analysis. 

But  we  are  struck  by  the  significant  fact  that,  while  there  are  fifty- 
nine  parishes  entitled  to  representation,  only  twenty-eight  parishes 
were  present  by  their  delegates ;  and  they,  we  presume,  were  chiefly 
parishes  of  the  clergy  who  appeared;  and  that,  of  those  twenty-eight, 
only  nineteen  voted  in  favor  of  the  resolution. 

How  this  analysis  of  the  vote  upon  the  resolution  can  be  recon- 
ciled with  the  averments  of  the  Committee,  ''that  a  large  majority  of 
the  representatives  of  the  clergy  and  laity  of  New  Jersey  have  de- 
clai'ed  that  such  grave  and  momentous  rights  of  the  Diocese  are  in- 
volved in  this  presentment  as  to  demand  that  they  be  stated  to  your 
body,"  we  submit  to  the  consideration  of  this  court. 

It  remains,  that  the  vast  majority  of  the  laity  of  New  Jersey  are 


20 

silent  in  this  great  appeal.      They  urge  no  interruption  to  the  ordinary 
course  of  justice. 

They  who  make  this  unheard-of  claim  are  a  small  minority  of  both 
orders,  speaking  their  devotion  to  the  Bishop,  rather  than  the  opinion 
of  an  impartial  and  independent  inquest. 

The  claim  is,  therefore,  destitute  of  every  element  of  strength. 

To  the  character  of  a  full  and  fair  investigation  of  the  matters 
charged  against  the  Bishop,  the  proceeding  of  the  Convention  has  no 
pretence  of  title. 

To  call  it  a  trial,  is  a  gross  perversion  of  language.  It  has  no  one 
quality  of  a  trial.  Parties  were  not  cited,  witnesses  were  not  con- 
fronted, pleas  were  not  entered,  charges  were  not  preferred,  no  judges 
were  present;  a  Committee  sat  in  the  presence  of  the  Bishop  and  his 
counsel,  sent  for  whom  they  pleased,  made  up  their  report,  and  re- 
turned it  to  the  Convention.  It  concludes  nothing.  If  adverse,  it 
would  only  have  been  the  ground  on  which  the  Convention  might 
have  made  a  presentment.  But  of  itself,  it  would  not  have  been  even 
a  presentment.  Still  less  could  it  be  considered  di  judgment  conclud- 
ing the  merits,  whether  for  or  against  the  accused. 

It  is,  therefore,  no  fair  or  full  expression  of  the  opinion  of  the 
clergy  and  laity  of  New  Jersey. 

It  is  no  full  or  fair  investigation  of  the  matters  laid  to  the  Bishop's 
charge. 

It  is  no  trial  in  form  or  in  substance  of  any  one  of  the  charges. 

It  is  entitled  to  no  weight  whatever  before  this  court,  even  were 
it  regularly  before  it. 

It  is  a  gross  invasion  of  the  prerogatives  of  the  Court  of  Bishops ; 
a  glaring  attempt  to  persuade  or  overawe  them  in  the  performance 
of  their  duty.     They  should  repel  it  promptly  and  decisively. 

11.  But  the  Committee  are  instructed  to  urge  its  legal  effect. 

We  might  well  spare  ourselves  the  trouble  of  replying  on  this  point, 
till  the  Committee  have  made  up  their  own  minds  in  what  light  they 
will  themselves  regard  the  resolutions  of  the  Convention. 

Their  argument  is  one  long  series  of  misapplied  names  and  mis- 
conceived principles.  A  brief  exposition  of  the  true  nature  of  the 
proceedings  of  the  Convention,  and  of  the  three  Bishops  as  defined 
by  the  Canon,  the  ultimate  and  only  law  of  this  court,  will  exempt 
us  from  the  pursuing  of  the  Committee  through  the  labyrinth  of 
their  perplexities. 


21 

The  policy  of  the  jurisprudence  of  modern  times,  in  England  and 
America,  has  interposed  between  the  citizen  and  a  prosecution  for  a 
public  offence,  a  public  body,  or  public  bodies,  charged  with  inquiring 
into  the  propriety  of  putting  a  party  on  his  trial. 

Such  are  our  Grand-Juries — such  are  the  House  of  Commons  and 
the  House  of  Representatives,  touching  impeachments — such  are 
courts  of  criminal  jui'isdiction,  together  with  the  Attorney-General, 
relative  to  informations  for  misdemeanors  filed  by  the  latter,  with  the 
leave  of  the  former. 

The  functions  of  these  bodies  are  solely  those  of  inquest.  They 
make  inquiry  ex  parte,  and  institute  or  refuse  to  institute  prosecu- 
tions, as  they  see  fit,  under  all  the  circumstances.  They  can  only 
order  a  prosecution,  or  find  a  bill,  on  evidence  ;  but  that  evidence  is 
confined  to  one  side,  that  of  the  prosecution ;  and  none  other  is 
allowed  to  be  brought  before  them.  The  reason  is,  they  try  nothing; 
they  merely  inquire  whether  such  a  case  is  made  out  as  makes 
it  fit  that  the  party  accused  should  be  put  on  his  trial.  But  though 
they  must  have  evidence  before  they  can  put  a  party  on  his  trial, 
they  can  and  do  open  the  investigation  into  an  alleged  or  supposed 
crime,  on  the  information  or  rumor  of  any  fact,  putting  them  on 
inquiry,  and  promising  to  reward  research  by  discovery. 

The  finding  of  a  true  bill  by  one  of  these  inquests — a  grand-jury, 
for  instance — does  not  condemn  the  accused.  It  is  merely  a  decla- 
ration that  the  jury  believe  him  guilty,  and  the  necessary  prerequi- 
site of  a  trial. 

The  failure  or  refusal  to  find  a  bill  is  no  more  an  acquittal  than 
the  finding  is  a  conviction  of  the  accused.  Neither  bars  subsequent 
proceedings.  Neither  is  conclusive  on  any  one  or  on  any  thing.  The 
same  jury  may  refuse  to-day,  and  find  a  true  bill  to-morrow  for  the 
same  offence.  Or  one  grand-jury  may  refuse,  and  a  following  one 
may  find  a  bill.  Or  the  court  may  allow  an  information  to  be  filed, 
either  before  a  grand-jury  shall  have  refused  to  find  a  bill,  or  after 
it  has  refused,  or  even  when  it  has  found  one,  if  the  prosecuting  officer 
prefer  that  mode  of  proceeding. 

If  no  body  authorized  will  find  a  bill  or  allow  an  information,  the 
party  cannot  be  tried ;  but  he  is  not  acquitted ;  and  any  subsequent 
grand-jury,  or  the  court  at  a  future  day,  may  proceed  by  bill  or  infor- 
mation at  its  pleasure.     Such  a  thing  as  pleading  the  refusal  of  one 

2* 


22 

such  body,  with  a  view  to  quash  the  finding  of  another,  is  an  ab- 
surdity of  which  no  law-book  furnishes  an  example. 

The  trial  of  the  accused,  when  the  accusation  is  once  instituted  by 
any  body  known  to  the  law  as  authorized  to  institute  it,  is  a  totally 
different  affair. 

The  thing  to  be  tried  is,  the  bill  found  by  the  Grand- Jury,  the 
impeachment  by  the  House  of  Representatives,  or  the  information  by 
the  Attorney-General. 

The  trial  is  not  before  an  inquest  proceeding  ex  parte,  but  before 
a  court,  on  formal  pleadings,  in  the  presence  of  the  parties,  where 
witnesses  are  confronted,  sworn,  cross-examined ;  and  its  result  is, 
not  putting  a  party  on  trial,  but  putting  an  end  to  the  trial,  making 
an  end  of  the  whole  accusation — either  finally  discharging  the  prisoner 
by  acquittal,  or  finally  condemning  him  by  a  conviction.  The  one 
is  the  beginning,  the  other  is  the  end  of  controversy. 

Now  the  claim  of  the  Convention  of  New  Jersey  is,  that  its  in- 
vestigation and  its  resolution,  declaring  the  result  of  that  investiga- 
tion to  be  the  exculpation  of  the  Bishop  from  any  charge  of  crime  or 
immorality  made  against  him,  shall  exclude  the  right  of  this  court  to 
try  him,  on  a  presentment  made  by  three  Bishops,  for  the  crimes 
and  immoralities  so  investigated. 

This  is  the  only  intelligible  shape  in  which  we  can  state  the  vague 
and  shifting  forms  of  appeal,  entreaty,  remonstrance,  and  argument, 
in  which  the  Committee  have  clothed  their  meaning. 

The  facts  are :  1.  The  declaration  of  the  Special  Convention  that 
there  was  no  cause  for  investigation.  2.  The  presentment  ordered 
for  trial  on  the  24th  of  June.  3.  The  Convention  which  passed  the 
resolutions,  and  had  the  investigation  in  question.  4.  The  adjourn- 
ment of  the  trial.  5.  The  consequent  making  of  a  new  presentment, 
now  about  to  be  tried  before  this  court,  summoned  for  that  purpose 
according  to  the  Canon. 

The  progress  of  this  trial  the  Convention  claims  a  right  to  arrest, 
by  virtue  of  the  course  of  events  above  narrated. 

This  court  is  created  by  the  highest  authority  known  to  the  American 
church.  It  is  not  in  any  particular  subordinate  or  amenable  to  the 
Convention  of  the  Diocese  of  New  Jersey. 

On  the  contrary,  it  draws  its  authority  from  a  source  paramount  to 
the  laws  and  canons  of  the  Convention  of  New  Jersey,  and  which  that 
Convention  is  bound  to  obey. 


23 

Unless,  therefore,  the  Canons  of  the  GTeneral  Convention  give  that 
of  New  Jersey  the  authority  claimed,  it  does  not  exist,  but  is  an  ille- 
gal usurpation. 

The  only  canon  in  existence  on  the  subject  is  that  entitled  '^ Trial 
of  a  Bishop,  the  Third  Canon  of  1844." 

That  canon  gives  the  Convention  one  right  and  only  one  right. 
Unless,  therefore,  that  right  be  the  one  now  claimed,  or  necessarily 
involves  it  as  a  logical  sequence,  it  has  no  existence. 

It  is  futile  to  invoke  the  spirit  of  the  ancient  canons,  for,  however 
explicit,  they  are  not  of  higher  authority  than  the  Canon  of  our  Gene- 
ral Convention,  even  if  they  be  any  rule  to  bind  us  under  any  cir- 
cumstances. The  question  is,  what  does  the  law  of  our  church  say 
on  the  matter  ? 

Now  that  Canon  declares  (§  1)  that  the  trial  of  a  Bishop  shall  be 
on  a  presentment  in  writing;  that  it  may  be  for  any  crime  or  immo- 
rality, &c.  &c. ;  and  then  proceeds  : — 

"  Such  presentment  may  be  made  by  the  Convention  of  the  Diocese 
to  which  the  accused  Bishop  belongs,  two-thirds  of  each  order  present 
concurring,  provided,  that  two-thirds  of  the  clergy  entitled  to  seats 
in  said  convention  be  present,  and  provided  also,  that  two-thirds  of 
the  parishes  canonically  in  union  with  said  Convention  be  represented 
therein ;  and  the  vote  thereon  shall  not  in  any  case  take  place  on  the 
same  day  on  which  the  resolution  to  present  is  offered ;  and  it  may 
also  be  made  by  any  three  Bishops  of  this  church." 

This  is  every  word  giving  the  Convention  any  power  in  the  matter 
at  all. 

Prior  to  this  Canon,  no  such  case  could  have  arisen ;  consequently, 
no  power  can  have  existed  prior  to  the  Canon ;  and  we  have  only  to 
ascertain  its  meaning. 

Bearing  in  mind  the  explanation  above  given  of  the  relations  of 
the  inquest  instituting  a  prosecution,  and  the  court  trying  the  pre- 
sentment, there  is  no  doubt  to  which  of  these  bodies  the  Convention 
is  assigned. 

It  is  plainly  an  inquest  to  put  a  party  on  trial — not  a  court  finally 
to  try  any  one  or  any  thing. 

It  is  also,  in  the  event  of  its  making  a  presentment,  made  a  party 
to  such  presentment,  for  the  purpose  of  conducting  that  presentment. 
'  These  are  its  only  functions.  But,  if  so,  there  is  an  end  of  the 
legal  claims  of  the  Committee;  for  an  inquest  can  try  nothing  so  »s 


24 

to  make  d^  final  decision  upon  it.  Its  whole  action  contemplates,  and 
is  preparatory  to,  a  trial.  Therefore,  the  investigation  of  the  Con- 
vention was  not  a  trial ;  the  resolution  of  the  Convention,  fully  ex- 
culpating the  Bishop,  was  not  a  verdict  nor  a  judgment  of  acquittal. 
It  was  in  no  sense  final  or  conclusive  on  any  one.  The  same  Con- 
vention could,  the  next  day,  have  renewed  the  investigation,  found  a 
presentment,  and  put  the  Bishop  in  course  of  prosecution  before  this 
very  court. 

It  is,  therefore,  a  gross  misuse  of  legal  language  to  speak  of  his 
having  been  acquitted,  and  of  a  verdict  in  his  favor. 

He  has  never  been  tried ;  and  the  Convention  of  New  Jersey^  if  it 
had  assumed  to  try  him,  had  no  jurisdiction  so  to  do. 

All  that  the  Convention  did  was,  that  they  did  not  present  Mm. 

But  the  Canon  does  not  say  that  ih.e  failure  of  the  Convention  to 
present,  shall  destroy  the  power  of  three  Bishops  to  make  a  present- 
ment. If  it  did,  it  would  be  an  absurdity ;  for,  if  the  Convention  did 
not  act,  the  Bishops,  by  the  hypothesis,  could  not.  If  the  Conven- 
tion did  present,  then  the  presentment  by  the  Bishops  would  be 
nugatory. 

Nor  does  the  Canon  say  that  the  refusal  of  the  Convention  to  pre- 
sent shall  prevent  a  subsequent  presentment  for  the  same  crimes  by 
the  Bishops.  It  bases  no  rights  of  either  presenting  power  on  the 
failure  or  the  refusal  of  the  other.  It  settles  no  questions  of  prece- 
dence in  time  or  dignity.     Consequently,  none  exists. 

Nor  does  any  analogy  of  other  presenting  bodies  lend  countenance 
to  the  supposition  that  a  refusal  of  one  to  present,  prevents  another 
from  presenting.  Such  a  thing  is  unheard  of  in  any  law-book.  It, 
therefore,  has  no  foundation  in  the  analogies  of  jurisprudence. 

Nor  is  the  analogy  of  concurrent  jurisdictions  applicable.  That 
applies  only  where  one  of  two  different  tribunals — both  having  cog- 
nizance of  the  same  matter — has  the  matter  in  hand.  In  that  case, 
another  concurrent  court  will  not  touch  it.  But  that  is  not  this  case. 
Both  presenting  bodies  are  the  instruments  of  the  same  court. 
Whichsoever  makes  the  presentment,  the  trial  is  before  the  same 
court.  No  question  of  precedence  can  ever  arise,  except  as  to  the 
right  to  conduct  a  prosecution  actually  instituted;  and  then  the  party 
which  first  instituted  it  would  hold  the  control  of  its  own  proceeding. 

But  that  question  would  not  arise  if  one  presented  after  the  other 
had  refused  to  present,  for  there  would  not  be  any  attempt  to  carry 


25 

on  two  prosecutions  before  the  same  or  concurrent  tribunals  at  the 
same  time.  It  would  be  more  like  the  case  of  a  new  suit  in  one 
court  after  a  nonsuit  or  other  inconclusive  termination  of  a  prior 
suit  in  another  tribunal,  which  is  no  bar  to  the  second  suit. 

The  right  of  priority  set  up  for  the  Convention  has  no  foundation 
in  the  Canon,  and  is  in  itself  unmeaning.  If  it  mean  that  the  Con- 
vention have  the  first  right  to  present  their  Bishop,  one  of  two  re- 
sults follows :  either  the  right  of  the  Bishops  depends  on  the  action 
of  the  Convention,  or  it  does  not.  If  it  do  not,  then  it  is  independent 
and  free  from  its  influence.  If  it  do,  then  the  Bishops,  if  they  pre- 
sent at  all,  must  either  present  before  the  Convention  have  acted  at 
all — and  then  the  prior  right  is  given  up — or  they  must  present  after 
the  Convention  have  presented — and  then  it  is  an  absurdity — or  they 
must  present  after  the  Convention  have  refused  to  present — and  then 
we  are  in  the  very  case  of  our  right. 

It  is  plain,  therefore,  not  only  that  the  Canon  does  not  give  any 
such  priority,  but  that  it  is  an  absurdity ;  or  it  proves  that  we  are 
rightly  before  this  court,  and  above  the  power  of  this  Convention. 

If  it  should  be  said  that,  in  the  absence  of  any  special  priority 
given  to  the  Convention,  its  refusal  bars  the  subsequent  right  of  the 
Bishops,  then  it  must  follow,  by  the  same  reason,  that  a  prior  refusal 
of  three  Bishops  bars  the  Convention,  and  a  prior  refusal  of  any 
three  Bishops  bars  the  whole  bench  of  Bishops  and  the  Convention 
— which  is  an  absurdity. 

The  simple  truth  is,  that  the  General  Convention  meant  to  create 
two  sources  of  prosecutions,  to  protect  the  purity  of  the  church.  The 
Convention  might  need  to  protect  its  Diocese;  the  whole  church  was 
interested  in  the  purity  of  each  of  its  Bishops.  The  General  Con- 
vention, therefore,  gave  the  local  Convention,  as  well  as  the  whole 
body  of  Bishops,  the  right  of  calling  any  Bishop  to  account  before 
his  peers. 

The  spirit  of  ancient  canons  has  nothing  to  do  with  the  matter,  for 
such  a  thing  as  a  trial  of  a  Bishop  before  or  by  his  diocesan  conven- 
tion, or  presbytery,  is  unknown  in  ancient  history.  Any  responsible 
man  could  put  the  Bishop  on  his  defence  before  the  Synod  of  the 
Province,  and  no  presentment  by  a  local  convention  was  requisite. 
We  throw  more  guards  around  our  Bishops. 

The  suggestion  that  the  Convention  has  sole  cognizance  of  present- 
ments for  crime,  and  that  three  Bishops  can  present  only  for  heresy, 


26 

is  merely  the  interpolation  of  a  proposed  canon,  never  enacted,  into 
the  midst  of  a  canon  which  it  was  intended  to  repeal,  but  did  not 
repeal. 

In  point  of  fact,  the  Convention  never  for  a  moment  had  before  it 
any  proposition  on  which  the  Canon  authorizes  it  to  pronounce.  It 
never  was  moved  to  present  the  Bishop.  It  is  only  on  such  a  motion 
that  the  Canon  gives  it  any  rights  at  all.  It  requires  the  present- 
ment by  a  convention  to  be  by  resolution  to  present,  and  forbids  the 
vote  to  be  taken  on  the  same  day  on  which  the  resolution  is  oifered. 
But  there  was  never  a  resolution  to  present  at  all,  and,  therefore,  the 
Convention  never  took  the  first  step  to  acquire  any  rights  under  the 
Canon. 

But  all  this  discussion  might  have  been  cut  short,  but  for  the  im- 
portance of  the  principle  involved,  by  the  simple  and  decisive  con- 
sideration that  the  Convention  of  1852  was  not  so  organized  as  to 
have  even  jurisdiction  of  the  question  of  presentment. 

The  Canon  requires  that  for  such  purpose  two-thirds  of  the  clergy 
entitled  to  seats  shall  be  present. 

There  were  thirty-seven  or  thirty-eight  clergymen  so  entitled  in 
New  Jersey ;  but  only  twenty-two  were  present,  which  do  not  amount 
to  two-thirds  of  thirty-seven  or  thirty-eight. 

The  Canon  likewise  requires  that  two-thirds  of  the  parishes  canoni- 
cally  in  union  with  the  Convention,  be  represented. 

But  though  there  are  fifty-nine  parishes  in  New  Jersey,  only 
twenty-eight  were  so  represented. 

It  follows  that  the  Convention  was  never  so  constituted  as  to  be 
able  to  make  a  valid  presentment  of  the  Bishop. 

If,  therefore,  a  refusal  to  present  be  of  any  avail  at  all,  it  must  be, 
at  least,  b}-  a  convention  whose  opposite  vote  could  have  given  an 
opposite  result.  The  refusal  of  this  Convention  was,  therefore,  a 
nullity  for  lack  of  jurisdiction. 

The  presentment,  therefore,  stands  clear  of  all  difficulties. 

If  so,  then  the  Canon  expressly  excludes  any  and  every  other  pro- 
ceeding by  this  court,  besides  the  trial  of  the  presentment. 

The  second  section  declares  that,  upon  a  presentment  made  in  either 
of  the  modes  pointed  out  in  §  1  of  this  Canon,  the  course  of  proceed- 
ing shall  he  as  follows : — 

Now  we  have  a  presentment  in  one  of  those  modes,  formally  speci- 


27 

fying  crimes  and  immoralities  laid  to  the  charge  of  the  accused,  of 
which  this  court  has  jurisdiction. 

The  Canon,  therefore,  commands  you  to  proceed  to  the  trial  of  the 
presentment,  whether  you  approve  or  disapprove  of  the  making  of  it, 
whether  you  think  it  just  or  unjust — for  the  good,  or  for  the  injury 
of  the  church. 

Your  functions  are  simply  judicial :  you  have  no  discretion  to  pro- 
ceed, or  not  to  proceed.  The  presentment  being  found  and  ordered 
for  trial,  you,  like  every  other  court,  are  the  passive  judges  of  the 
law,  and  of  the  fact;  you  take  no  steps;  you  cannot  refuse  to  proceed 
at  the  instance  of  any  person  till  that  presentment  be  finally  disposed 
of  by  trial  and  judgment — ending  forever  the  cause — exculpating  or 
convicting  the  accused — and  placing,  between  him  and  the  future,  the 
record  of  his  conviction  or  acquittal  for  a  perpetual  memorial ;  a  pro- 
tection of  the  accused,  or  of  the  church ;  an  end  of  the  controversy, 
and  of  the  floating  scandal  which  now  vexes  the  church,  and  tarnishes 
her  name. 

In  conclusion,  we  beg  leave  to  say,  that  we  regard  this  whole  appli- 
cation as  irregular,  and  in  plain  violation  of  the  express  words  of 
the  Canon,  which  says:  "upon  a  presentment,  the  course  of  proceed- 
ing shall  he  as  follows,"  and  does  not  prescribe  or  allow  of  any  such 
intervention  of  a  Diocesan  Convention. 

That  we  regard  it  as  highly  derogatory  to  the  episcopal  order  that 
a  Diocesan  Convention  should  assume  the  precedence  over  them  in 
commencing  prosecutions  against  Bishops,  when  the  Canon  subjects 
the  Convention  to  many  stringent  limitations  and  provisos,  but  leaves 
any  three  Bishops  free  to  present,  when  and  as  they  choose. 

That  we  regard  it  as  of  evil  example  thus  to  allow  the  claims  of  a 
Diocesan  Legislature  to  intervene  and  arrest  the  course  of  justice, 
with  matters  not  of  judicial  cognizance,  but  appealing  to  the  preju- 
dices, the  feelings,  the  fears  of  the  Bishops;  and  we  cannot  but  ask 
what  would  have  been  thought  of  the  Legislature  of  Mississippi,  had 
it  sent  a  committee  to  New  Orleans  to  remonstrate  with  the  Court 
of  the  United  States  against  subjecting  their  Governor,  Quitman,  to 
a  trial;  or  of  the  judges  of  that  court,  had  they  debated,  for  days, 
the  propriety  of  dismissing  the  prosecution  because  of  such  remon- 
strance. 

We  further  submit  that  the  wisdom  of  the  General  Convention,  in 
providing  two  presenting  bodies,  has  been  signally  illustrated  in  this 


28 

cause,  for  it  must  be  apparent  tliat  the  Convention  of  New  Jersey 
were  incapable  of  sitting  even  as  a  fair  inquest  on  a  presentment. 

We  now  stand  here  full-handed  with  proof  of  the  allegations  of 
the  presentment,  and  earnestly  pray  you,  by  your  regard  for  your 
sacred  vow,  faithfully  to  administer  the  discipline  of  this  church;  by 
3^our  regard  for  its  purity  and  reputation,  by  the  stain  which  the  dis- 
missal of  this  prosecution  must  leave  on  its  spotless  robe,  not  to 
inflict  so  deadly  a  blow  on  it,  as  to  leave  the  accused,  untried  and 
unacquitted,  to  be  numbered  among  its  chief  pastors. 

We  do  not  desire  to  shrink  from  the  responsibilities  of  our  posi- 
tion. 

We  stand  here  as  the  Presenters  of  the  accused,  because  we  believe 
him  guUti/. 

We  ask  for  his  trial,  because  we  expect  to  prove  the  presentment 
we  have  made. 

With  such  expectations  and  belief,  it  would  be  hypocrisy  to  pre- 
tend to  wish  him  to  be  freed  from  the  prosecution,  without  regard  to 
the  manner  and  the  means.  • 

If  he  be  innocent,  none  will  rejoice  more  than  we  at  his  acquittal. 

If  he  be  guilty,  we  shall  lament,  as  we  are  bound  to  do,  his  escape 
from  the  legal  penalty  by  any  contrivance  of  judicial  novelties. 

We  ask  a  full,  fair,  and  impartial  trial  j  and  pray  God  to  give  the 
respondent  a  good  deliverance. 

WILLIAM  MEADE,  D.  D., 

Bishop  of  the  P.  E.   C.  in    Virginia. 

CHARLES  R.  M'lLVAINE,  D.  D., 

Bishop  of  the  P.  E.  C.  in  Ohio. 

GEORGE  BURGESS,  D.  D., 

Bishop  of  the  P.  E.  C  in  Maine. 


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PHOTOMOUNT 

PAMPHLET  BINDER 

Manufactured  by 

©AYLORD  BROS.  Inc. 

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BX5960.D63M4 

Reply  of  Bishops  Meade,  M'llvaine,  and 

Princeton  Theological  Seminary-Speer  Library 


1    1012  00051   2444 


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